The European Court of Human Rights has handed down judgment in the case of Da Silva v United Kingdom.

Charles de Menezes was shot dead at Stockwell underground station (London) on 22nd July 2005, soon after he had been mistakenly identified as a suicide bomber just 2 weeks after the 7 July London bombings in which 52 people died.

The court's judgment was the culmination of a seven-year legal battle in a case first lodged with the Strasbourg court in 2008 by de Menezes’s cousin, Patricia Armani Da Silva, who was living with him in London at the time of his death.

Ms Da Silva, complained that the State had not fulfilled its duty to ensure the accountability of its agents for his death because the ensuing investigation had not led to the prosecution of any individual police officer.

Having regard to the proceedings as a whole, the Court found that the UK authorities had not failed in their (procedural) obligations under Article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of identifying and – if appropriate – punishing those responsible. In particular, the Court considered that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated. Both the individual responsibility of the police officers involved and the institutional responsibility of the police authority had been considered in depth by the Independent Police Complaints Commission (IPCC), the Crown Prosecution Service (CPS), the criminal court and the Coroner and jury during the Inquest. The decision not to prosecute any individual officer was not due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute.

Realistic prospect of conviction:

The E Ct HR noted (para 228) that in the period 1990-2014 there had been 55 deaths caused by Police shootings in England and Wales but no criminal convictions even where an inquest jury had returned an unlawful killing verdict. From 1993 to 2005 there had been 30 fatalities but only 2 prosecutions of Police Officers. Did this point to the "realistic prospect of conviction" test being too strict? The court noted (para 217 that:

" ... the Government submitted that in England and Wales the threshold evidential test had been the subject of frequent and anxious consideration through public consultation and political scrutiny. Detailed reviews of the Code were carried out in 2003, 2010 and 2012 and during those reviews the threshold evidential test had not been subject to substantive criticism by the Equality and Human Rights Commission (“EHRC”) or any of the human rights organisations with an interest in criminal law. In the 2003 review the then Attorney General specifically considered whether a lower threshold should apply to deaths in custody but found little, if any, support for such an approach as it would be unfair - and inconsistent - to subject potential defendants in such cases to the burden of prosecution in the absence of a realistic prospect of conviction. Public confidence was maintained by prosecuting where the evidence justified it, and not prosecuting where it did not.

and, at 218:

In light of the fact that the threshold evidential test had been given careful and anxious scrutiny, the Government argued that it should be accorded a significant margin of appreciation in assessing the appropriate evidential thresholds for the initiation and continuation of criminal proceedings in all cases.

The statistics undoubtedly give rise for concern. However, the court (at para 276) concluded - " ... the Court does not consider that the threshold evidential test applied in England and Wales constituted an “institutional deficiency” or failing in the prosecutorial system which precluded those responsible for the death of Mr de Menezes being held accountable."

Self-defence:

The E Ct HR considered the law on self-defence and at 251 said:

"It is clear both from the parties’ submissions and the domestic decisions in the present case that the focus of the test for self-defence in England and Wales is on whether there existed an honest and genuine belief that the use of force was necessary. The subjective reasonableness of that belief (or the existence of subjective good reasons for it) is principally relevant to the question of whether it was in fact honestly and genuinely held. Once that question has been addressed, the domestic authorities have to ask whether the force used was “absolutely necessary”. This question is essentially one of proportionality, which requires the authorities to again address the question of reasonableness: that is, whether the degree of force used was reasonable, having regard to what the person honestly and genuinely believed (see paragraphs 148-155 above)."

and at 252:

"So formulated, it cannot be said that the test applied in England and Wales is significantly different from the standard applied by the Court in the McCann and Others judgment and in its post-McCann and Others case-law (see paragraphs 244-248 above). Bearing in mind that the Court has previously declined to find fault with a domestic legal framework purely on account of a difference in wording which can be overcome by the interpretation of the domestic courts (see Perk v. Turkey, no. 50739/99, § 60, 28 March 2006 and Giuliani and Gaggio, cited above, §§ 214 and 215), it cannot be said that the definition of self-defence in England and Wales falls short of the standard required by Article 2 of the Convention."

There is little doubt that the judgment will receive considerable scrutiny by lawyers and the legal test for "self-defence"is a subject to which we shall doubtless return.